This post is adapted from the paper I have recently presented at the “Regional Workshop on the Conventions on the Illicit trafficking of Cultural Objects”, which was hosted by the Jamaican Ministry of Culture, Gender, Entertainment and Sport. This workshop was held at the Jamaica Pegasus, from March 2-5, 2020. Among the topics for discussion were: Jamaica’s restitution claims, the steps required for Jamaica to become signatory to the relevant treaties and conventions, international best practices, and measures to mitigate the illicit trade and any other inappropriate or undesirable export of cultural goods. These measures include the proposed establishment of a Register of Significant Cultural Goods which would be subject to certain restrictions with regards to trade and export.
In my presentation, I moved away from customary focus on antiquities in discussions on illicit trade and restitution, and focused instead on modern and even contemporary art. You may ask, why bring up contemporary art in such a discussion, as this is a field where cultural and market values are still being negotiated? History has shown us that this may happen very quickly and that a lot of what has been lost in terms of already recognized cultural heritage occurred because its value was not recognized in its own time and the necessary steps were not taken to protect it then. Discussions about cultural heritage preservation cannot neglect the present or, for that matter, the future. It must be informed by a keen eye on changing cultural dynamics and new developments in creative production, so that wise, well-informed decisions are made about what will be the Significant Cultural Objects of the future.
My focus in this paper is on the issues that surround private art collecting in Jamaica, and some of the activities, services and problems that surround it, particularly the fraught dynamic between private art collecting and public cultural preservation. While most of our discussion in the MCGES workshop was, by virtue of its focus on international conventions and treaties, concerned with cross-border transactions, I spoke mainly about domestic dynamics. My position is that we cannot discuss legal and policy frameworks, restitution issues, and ethical standards with regards to the international trade in cultural property, without considering the problems that occur on the domestic level, as the two are deeply connected. Given certain recent events and developments here in Jamaica, and elsewhere in the Caribbean, there is some urgency there.
A significant part of the problem in the Jamaican context, and in much of the rest of the Caribbean, stems from the informality of the local art market, of which a significant part is entirely off the record and undocumented. This means that much of the trade in art falls outside of the tax net, which is an issue in and of itself, but the secrecy that surrounds the art market in Jamaica also means that proof of ownership is often lacking and that it is very difficult to establish and document provenance, let alone to keep any tabs on how Jamaican art circulates locally or in the international market. This lack of transparency leads to the potential loss of important works of art for Jamaican public collections and makes ventures that may help to mitigate any illicit international trade, such as the proposed Registry of Significant Cultural Objects, very difficult to implement.
Needless to say, this informality also opens the door wide for all sorts of other art market problems, such as art theft and forgeries, and also facilitates the potential involvement of money laundering activities. While the latter is hard to substantiate, it is well documented that art theft has occurred on a number of occasions in Jamaica in the last two decades. It has involved the theft of work by certain well-recognized, up-market artists, in heists that were obviously carefully planned and deliberately targeted, but also more random and pedestrian motivations, such as the scrap metal trade. Forgeries have in recent years also occurred with some frequency in Jamaica, although it is not clear whether they originate locally or are created elsewhere – I suspect that it is a combination of both. From what I have seen recently I have good reason to believe that high quality forgeries of the work of certain major Jamaican artists are again circulating, locally and potentially also internationally. If there is no practice of producing and expecting proper provenance documentation, such fraud becomes a lot easier and is much harder to control.
None of this is in the interest of the preservation, reputation, and good management of Jamaica’s cultural heritage, of course, or of the general health and welfare of its art world. There is an urgent need for formalization, documentation, and judicious regulation of the local art market, without lapsing into prohibitive over-regulation, as well as education about why sensible documentation is beneficial. Artists, for instance, often resist the notion that they, too, might have to pay taxes but fail to understand that it is much harder to insist on intellectual property benefits, such as resale royalties, if first sales are not on the record. Art collectors, on the other hand, typically take the view that their holdings are a strictly private matter and that making such holdings available in the public domain is discretionary. That their holdings may be part of the collective cultural property of Jamaica is only rarely a consideration – there is a difference between moral or cultural and legal rights here, but both matter.
Ironically, it is impossible to sell any real estate or even the cheapest, most run-down second-hand car without a proper title, and these are mechanisms that are quite well-regulated in Jamaica, but works of art that sell for prices that may rival those of the country’s omnipresent luxury cars change hands without any documentation of the transaction or the new ownership – it is privileged knowledge to those few who might know, which is not good enough for art works of significant importance. It might be helpful to introduce a formal titling system for duly authenticated art works over a certain value, without which no property transfers could take place, and that such titled art works should also be subject to the sort of export permitting similar to what for instance exists in Cuba and other countries that take their cultural heritage seriously, with a provision for a right of first refusal for the relevant public collecting institutions in the case of permanent exports.
As Kevin Farmer, Deputy Director of the Barbados Museum and Historical Society, pointed out in the workshop, the Barbados National Gallery Act, which provides the legal foundation for the establishment of such an institution, includes a provision to control the export of Bajan art. Unlike Barbados, and the other countries that have such institutions in the region, however, Jamaica has no National Gallery Act – the National Gallery of Jamaica (NGJ) falls under the general provisions of the Institute of Jamaica (IoJ) Act, in which the NGJ is not even mentioned and its functions only most vaguely outlined. There is no provision in the IoJ Act for any controls on the export and local private sale of Jamaican art, for the preservation of significant art works, of the work by a particular artist, of particular categories of art, or of private collections that may be of national import (or for any other cultural objects, for that matter). For now, such powers reside solely with the JNHT, which is preoccupied mainly with monuments, sites, and archaeological artifacts, and only theoretically with the visual arts.
Legal reform is surely needed to address these gaps, whether this is through the JNHT, the IoJ or a proper NGJ act, which is the route I would prefer, as I believe that a specialized approach is needed for the visual arts, as this involves (or should involve!) specialized skill sets. The NGJ is in fact the only such institution in the Caribbean region that is not supported by its own statute and, in my view, this anomaly should have been corrected years ago, as it is detrimental to the institution and its governance, and potentially, even its long-term survival. The institution can cease to exist, or be merged with another museum, with the proverbial stroke of the pen – an earlier post on this subject can be found here.
The informality of the local art market is also a major problem for NGJ acquisitions, although the majority of these have in recent years been from living artists. The ICOM Code of Ethics provides quite clear guidance on the standards that are applicable to museum acquisitions, in terms of the need for title, but it is difficult to enforce this in a context where provenance and ownership documentation are more often than not non-existent. The lack of transparency and any specialized regulatory framework in the Jamaican art market also has other consequences and there is a difficult subject I need to broach here: namely the conflicts that arise from the way in which the NGJ has been interacting with private collectors, which goes well beyond the normal practice of cultivating good relationships with collectors for loans and as potential donors.